The main legal point established in the judgment is that in cases involving allegations of impotency and refusal to cooperate in sexual intercourse, the medical examination of both parties may be necessary for fair and impartial investigation.

JUDGMENT :

1. Heard Sri Gambhir Singh, learned counsel for the petitioner and Mrs. Manju Thakur, learned A.G.A.-I for the State respondents.

2. This writ petition is preferred under Article 226 of Constitution of India inter-alia with following reliefs:-

"(i) Issue a writ order or direction in the nature of certiorari to quash the impugned orders dated 07.10.2023 and 16.12.2023 passed by respondent no.4, whereby the petitioner/ victim has been ordered to undergone medical examination in respect of case crime no. 34 of 2023, Under Section 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act, Police Station-Mahila Thana, District Moradabad.

(ii) Issue a writ order or direction in the nature of mandamus commanding the respondent nos. 2 & 3 to take necessary action for conducting potency test/medical examination of respondent no.5 in K.G.M.U. Lucknow as advised by the board of the doctors of District Hospital Moradabad in place of L.L.R.M. Medical College, Meerut.

(iii) Issue a writ order or direction in the nature of mandamus commanding the respondent nos. 2 & 3 to conduct fair and impartial investigation of case crime no. 34 of 2023, Under Section 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act, Police Station-Mahila Thana, District Moradabad within stipulated period.”

3. The brief facts as per prosecution case are that the marriage of the petitioner was solemnized with 5th respondent (husband) on 26.01.2023 with Hindu rites and rituals but the marriage could not be consummated on account of impotency of her husband. Consequently, a written report dated 01.07.2023 was submitted by the petitioner at Police Station Mahila Thana, District Moradabad, alleging that the respondent nos.5 to 8 had inflicted cruelty on her and concealed the fact of impotency of her husband by birth with the petitioner. The aforesaid case was registered as Case Crime No.34 of 2023 under Sections 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act, Police Station Mahila Thana, District Moradabad.

4. Learned counsel for the petitioner submits that the petitioner herself is a victim of offence under Sections 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act and therefore, there was no reason to advise the petitioner to undergo medical examination (Gynecology Examination). She herself had raised a question of impotency of her husband/accused and demanded his potency test. Further, it is contended that her husband was medically examined by the Doctor of T.M.U. Hospital, Moradabad on her request and according to the supplementary report of the doctor dated 01.08.2023, petitioner’s husband was found suffering from phimosis disease, which is the main cause for impotency.

5. It is also contended that her husband was well aware that he was not in a position to perform sexual intercourse and in fact, he is an impotent person. Without divulging the said fact, the marriage has been solemnized. It is also alleged that during the investigation, in most arbitrary manner, the Investigating Officer had deleted Sections 354 and 420 I.P.C. as the case had been made out against the accused persons under Sections 354 and 420 IPC. Therefore, it is pressed that the impugned orders are illegal, arbitrary and against the provisions of law, wherein the respondents had no authority to compel the petitioner to undergo the medical examination. In case of marriage, physical relationship or mental relationship is a condition, which is persistent and regular to make the consummation of marriage essential. Non-consummation of marriage was the sore point of the wife (petitioner) due to which she lodged the FIR against the respondent nos.5 to 8. Moreover, once the petitioner alleged that her husband is impotent and cannot cohabit, then in such situation the petitioner cannot be asked to undergo medical examination. Hence, the impugned orders are illegal, arbitrary and the same are liable to be set aside.

6. Per contra, Mrs. Manju Thakur, learned A.G.A.-I has vehemently opposed the writ petition and submitted that the